Wednesday, March 06, 2013


Sunday, December 09, 2012

The Enduring Dividing Line: Equality Before the Law and Marriage Equality in 2012

I’ve now seen the sure-to-be Steven Spielberg classic “Lincoln” twice.  And despite criticism from other academics concerning the film’s passive portrayals of black characters, I found the film’s dramatic characterization of the 39th Congress’s debate on President Lincoln’s pushed 13th amendment, riveting.

With repeated references to compromise, the film recounts how liberal Republicans and conservative Democrats debated the amendment to abolish slavery along the terms of equality before the law or equality out right in all things. 

The dividing line, the story goes, came down to liberal Republican Rep. Thaddeus Stevens’ controversial statement to support the amendment only because he believed in equality before the law.  The decision caused other liberal Republicans to immediately question Stevens’ decades-long support for full equality and universal freedom for the nation’s “colored” population.

Stevens’ compromise, in part, allowed for a coalition to form to pass the amendment, which would go on to be ratified this week nearly 150 years ago - on December 6, 1865.

Significantly, acclaimed Lincoln biographer Doris Kearn Goodwin has found the film to be largely accurate.

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Given today’s marriage equality debates pending in the Supreme Court much can be learned from the debate between “equality before the law” and “equality in all things” juxtapositions.

While the Supreme Court is expected to try again at their weekly conference this Friday, to decide which gay marriage cases they will rule on this term, this week is the last such meeting before the holiday recess.

It’s been said before and the cases that are options to the justices to hear are in part based on the series of “civil war amendments” of which the Lincoln film’s 13th amendment focus is the progenitor.

Hence, it is likely that the justices will be debating the merits of the same “equality before the law” and “equality in all things” juxtapositions as evidenced in the 13th amendment debate on the House floor of the 39th Congress as portrayed in “Lincoln.” 

Of course, we know by now the party-line roles have reversed as a result of FDR’s New Deal, the 1964 realignment of southern Democrats to the Republican party, among other factors during the tumultuous years of the civil rights movement in the United States.

While many of the shared values of the liberal Republicans of 1865 are, perhaps, like unto the values of liberal Democrats of 2012 and the values of conservative Democrats of 1865 are like unto those of the extreme conservative Tea Party elements of the Republican Party in 2012, the factions are essentially the same when it comes to the nation’s centuries long fight concerning equality before the law.

However, the “equality before the law” and “equality in all things” juxtaposition debate remains firm. 

As the country prepares for the historic Supreme Court term before us, most would likely agree that this “land of the free” yet marginalizes certain populations based on the enduring dividing line of the “equality before the law” and “equality in all things” debate.  Sadly, many groups fit this description, but of imminent significance to the Supreme Court this week are same gender loving Americans’ legal battles to marry and receive marriage-related benefits.

There are many questions for the justices to consider in deciding which marriage equality cases to hear and each question has serious sociopolitical implications.

Just like the 19th century Congressional abolition debates, the 21st century marriage equality debate centers on equality.  For many, the 14th amendment has long answered this question for many groups, including African Americans, women, Latino/a Americans, Native Americans, Asian Americans, Americans with disabilities, and so on.

As Section 1 of the 14th Amendment clearly states: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

However, despite the clarity of the 14th amendment in stating federal supremacy and “equal protection of the laws,” the debate rages on and the dividing line is the same.  Meanwhile, American citizens hang in the balance.

While many may argue that the Stevens’ 13th compromise to support equality before the law rather than the full equality that he had long come to support was a character flaw, nearly 150 years later it remains a strategic political lesson in how to decide a controversial “equality” case filled with economic, legal, and for some, moral ramifications – and that will have huge implications on the nation’s direction.

It is, after all, equality before the law that the marriage equality cases are all about. 

In each case, all that is asked is that equality before the law  - a 19th century debate long won – be upheld.

To not do so, would be like unto telling Americans that the 18th century Federalists central government argument long won against the Anti-Federalists small government “states’ rights” argument is also invalid – and clearly such a decision would disrupt the very fabric of the nation.

Given the hallmark “Equal Justice Under Law” engraved marquee on the Supreme Court’s edifice, is it too much to ask that they uphold an enduring American principle decided long ago? 

Clearly equality in all things is long overdue and more than simply merited, but all that is asked is that equality before the law should endure.  Now that’s an enduring compromise.